Police in the ACT have just received legislated power to break the law, and to allow criminals to break the law. CLA says this guarantees that there will be police corruption in the ACT within the next 5-10 years, if the pattern in every other jurisdiction in Australia and federally is followed. Only one politician spoke up, with CLA, against the bill.
Crimes (Controlled Operations*) Bill 2008
Speech to the ACT Legislative Assembly by Dr Deb Foskey MLA (Greens)
August 2008
Mr Speaker, I don’t oppose the central principles behind this Bills. I recognise that there will be occasions when law enforcement agencies need to use the kind of powers contained in this Bill in order to effectively disrupt criminal networks. My major concerns with this Bill centre on the lack of checks and balances and the very low level of oversight and control that the ACT can exercise over its own police force. We are the only jurisdiction that doesn’t appoint its own police commissioner, and we are one of the only jurisdictions that doesn’t have our own anti-corruption body.
ACT policing only has to submit a limited report once a year to the Attorney General. We rely strongly on the AFP to oversight ACT Policing. I agree with the AFP Association that the Haneef case has undermined the public’s faith in the independence of the AFP. The ACT needs its own anti-corruption body, and it is disgraceful that successive ACT Governments have been satisfied with the existing arrangements by which the AFP uses the ACT as a training ground for its junior officers, and under which the ACT has no control over the loss of senior staff to national or overseas AFP deployments.
The kinds of powers and operations authorised by these amendments dramatically increase the level of temptation and increase the likelihood of corruption by ACT Policing officers. We owe it to ACT Policing to ensure that its officers’ integrity is not compromised. To do this, we need to put into place effective checks and balances to ensure that controlled operations don’t get out of hand. These amendments do not contain effective checks and balances. In fact, ACT policing will undertake these operations under the weakest regime of oversight in Australia.
This legislation does more than provide protection for AFP and Australian Crime Commission staff from prosecution for what would otherwise be illegal activities. It also gives the AFP in its role as ACT Policing the power to engage in operations where contraband like illegal drugs are not under their control. The absence of this power apparently led to the AFP withdrawing from ‘Operation Mocha’. Operation Mocha was the notorious ‘uncontrolled operation’ by the NSW Crime commission which resulted in 6 kilograms of cocaine going missing.
There are many lessons which should be learnt from the scandal of Operation Mocha. One of those lessons for us in the ACT is that the AFP officers were involved in the early stages of this operation and their acquiescence or tacit approval of the arguments used for justifying the operation should give us cause for concern.
The legislation under which the NSW Crime Commission carries out its controlled operations is very similar to the laws we are debating today. In fact, with one exception, they are tighter and more restrictive on the law enforcement body than the amendments the ACT Government is proposing.
Under NSW legislation an operation can only be approved if it will not foreseeably involve conduct which, among other things, seriously endangers the health or safety of any person. Under the ACT’s proposed legislation, the word ‘seriously’ has been omitted, so an operation can only be approved if it is foreseen that it will involve conduct which will merely endanger the health or safety of any person.
Now, while I welcome the sentiment, I don’t know how realistic this is. I would have thought that some possibility of harm, to somebody, would be reasonably foreseeable with any operations involving illegal drugs, guns, unscrupulous criminals, biker gangs and large sums of dirty money where the object is to obtain evidence intended to put those criminals behind bars.
The approach taken by the law enforcement agencies in Operation Mocha was to argue that their research showed that there were no recorded deaths from cocaine use, so it couldn’t be said that a controlled operation that resulted in the supply of cocaine would seriously endanger the health of any person.
From media reporting it seems that the AFP was aware of this reasoning and did not object to it. It would be interesting to ask ACT policing whether its leaders now consider that cocaine use causes serious harm, or indeed, any health danger to users.
The Government argues that the higher standard in our legislation would be workable by drawing a distinction between the decision to authorise a controlled operation and the actual conduct of an operation, where things could be far more likely to turn pear shaped. It remains to be seen whether this distinction can be maintained in practice. Certainly, it is difficult to imagine a credible argument that operations involving the supply of drugs or guns to criminal gangs might not involve a foreseeable risk of harm.
In NSW, under section 21 of the Law Enforcement (Controlled Operations) Act 1997 the police must inform the Ombudsman within 21 days of granting an authority or of receiving a report on the conduct of an authorised operation.
The ACT is relying on the Ombudsman to ensure that these controlled operations don’t get out of hand. But this reliance is misplaced. For a start, under our legislation there is no obligation on ACT Policing similar to that in NSW, to inform the Ombudsman within set time periods about controlled operations. Secondly, the Ombudsman has a practice of not inquiring into any operation that is currently underway. Thirdly, the Ombudsman can only look at existing ACT police files. Fourth, it is highly unlikely that corrupt police officers are going to create and leave incriminating evidence lying around in police filing cabinets. Fifth, even if the Ombudsman does suspect corruption, he has ineffectual powers to undertake his own investigations, and sixth, the legislation only provides that the ombudsman must make a report prepared under the Annual Reports Act once a year on his inspections regarding controlled operations. This is hardly the level of oversight that these serious new powers demand.
The only body which oversees our police force, which has any independence or power to undertake effective investigation, is the Australian Commission for Law Enforcement Integrity (ACLEI), which is tasked with oversighting all Federal Law enforcement Agencies. As far as I’m aware, the ACT has no formal input, and probably no influence whatsoever on the operations and agenda of the ACLEI.
ACLEI already does not have anywhere near enough resources to adequately fulfill its wide-ranging responsibilities. The former head of ACLEI said the body needed a tenfold increase in investigation staff and substantial extra funding to be effective. Given this state of affairs, it’s hard to imagine that the operations of the ACT Policing Branch of the AFP would attract much attention. I’m yet to hear the Attorney General adequately justify his faith in the ACLEI to oversight ACT Policing and the Australian Crime Commission. At the SCAG meetings that oversaw the drafting of these laws, he should have insisted that oversight of ACT Policing received a dedicated share of ACLEI’s budget and that the ACT Government have a statutory role in the functions of ACLEI.
Christopher Pyne, Shadow Minister for Justice and Border Protection, has said that “The 2008 Budget shows that the ACLEI’s activities are being crippled by under-funding. The same reports suggest ACLEI will be unable to perform duties such as wire tapping and covert operations, essential to root out corruption.”
Let me reiterate, I’m not satisfied that ACLEI can provide the level of oversight which ACT policing and the ACT electorate deserve.
Corruption
This is what the ALP’s own Wayne Sievers, the ALP’s candidate in this year’s ACT Legislative Assembly elections has to say on his website:
"Organisations such as the AFP now have so much unaccountable power that oversight is needed to protect the democratic rights of people."
Mr Sievers advocates a new national anti-corruption body, which would answer to a panel of judges, rather than a Government appointee.
According to his web site, Mr Sievers briefly worked with Mark Standen in the AFP’s Sydney drug unit in the 1980s, and believes corrupt federal officers like Mark Standen were allowed to leave quietly in the mid-1990s rather than face investigation. He says that while he worked for the AFP he was once offered an envelope stuffed with cash by his senior sergeant, and told it was his share of the take from a search warrant. Sievers says that after making a complaint to a more senior officer, he was immediately punished with a transfer to a non-operational area.
It is obvious from the blatant way in which this bribe was offered to Mr Sievers, and the way in which he was subsequently ostracised, that it was not an isolated incident. The Wood Royal Commission in 1997 disclosed major corruption in the AFP drug unit, and the subsequent Harrison Report named dozens of law enforcement officers, including AFP officers, who were subsequently sacked, but most of the report was kept secret, so we still don’t know the extent to which the corruption permeated our law enforcement Agencies.
I raise these facts because there is always in this place a tendency to try to score political points by being seen to be standing shoulder to shoulder with our police officers, and to launch personal attacks on anyone who might raise legitimate points of concern about their effectiveness or probity. This mindless knee-jerk populism seems to occur regardless of the factual realities, and regardless of whether such one-eyed blustering actually serves the interests of the broader AFP community, who are honest and hard-working, and who do not deserve to be tarnished by being associated with those few corrupt officers who are able to hide in their midst, thanks to the smokescreen created by the very politicians who pretend to be protecting them.
If anyone here feels like doing the same today, I would like them to first address these facts (because that’s what they are. Facts.), and explain why we should not be concerned about handing over even more powers without seeking or receiving any reassurance that these proven systemic problems have been resolved. This is what Justice Brennan said about controlled operations, in the High court case of Ridgeway v the Queen
“It is manifest that there will be anomalies, if not corruption, in the conduct of such operations in the absence of adequate supervision. But provisions of that kind cannot be prescribed by courts; they are appropriate matters for consideration by the Parliament.”
I have not read or heard any substantial consideration by the Government or the opposition regarding the lack of adequate supervision over the Australian Crime Commission and ACT Policing to whom we are entrusting these new powers.
George Williams, professor of public law at the University of NSW, notes that “Over recent years the AFP has exploded in numbers and responsibility” he goes on to say that “dedicated parliamentary oversight is needed for law-enforcement agencies.”
I agree with him. There should be an Assembly committee with realistic powers to oversight our own police force. Perhaps a future ACT Government will see fit to lobby the Federal Government to grant them the powers necessary to effectively manage the public servants who enforce our own laws.
I echo the concerns raised by the Families and Friends of Drug Law Reform, that these powers could lead to more drug users, as opposed to drug dealers and financiers, being drawn into the criminal justice system. I also share their concern that these kinds of operations could result in the entrapment of drug users, or small time user/dealers who deal drugs to support their habit, by inducing them to commit crimes which are more serious than they might otherwise have contemplated and committed.
The arrest and conviction statistics for the percentage of dealers and users arrested and convicted make depressing reading. The conviction rate for the so-called Mr Bigs is very low. The powers in this Bill have been justified as being necessary to catch the Mr Bigs and organised crime gangs. Their effectiveness remains to be seen and will be measured by the impact they have on organised crime, the conviction rate of Mr Bigs and the availability of drugs on the street.
It is disappointing that there is no statutory evaluation period for this legislation. I urge the Government to remain vigilant that these powers are not abused, and that they are not used for entrapment purposes or to incite people to commit crimes which would not otherwise have occurred.
* From the Explanatory Statement attached to the Bill:
In a controlled operation , instead of seeking to terminate immediately a criminal scheme, law enforcement officers allow the scheme to unfold under controlled conditions. During the process of allowing this to occur, an informant, agent or undercover police officer may himself or herself need to commit acts that would be regarded as offences unless protected by law. For example, participating in the possession or sale of illegal drugs.
This Bill passed the ACT Legislative Assembly on 7 August 2008, and is expected to formally commence in late-August or early-September 2008.